A System That Rewards Results

In his essay for Solutions: American Leaders Speak Out on Criminal Justice, Marc Levin urges a shift toward a results-oriented criminal justice system that takes a cue from successful state efforts to reduce incarceration.

April 27, 2015

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Marc Levin, Founder and Policy Director of Right on Crime and Director of the Center for Effective Justice at the Texas Public Policy Foundation

Keeping Americans safe, whether accomplished through our military or justice systems, is one of the few functions government should perform. However, that function should not be exercised without limits. We must move from a system that grows when it fails to one that rewards results.

When crime began increasing in the 1970s, Americans, and particularly conservatives, were correct to react against certain attitudes and policies that had arisen in the previous decade. The “if it feels good, do it” mentality and tendency to emphasize purported societal causes of crime — while de-emphasizing fundamental individual responsibility — was one culprit for a soaring crime rate. In response, we saw a nearly six-fold increase in incarceration, some of which was necessary to ensure violent and dangerous offenders were kept off the streets. Public safety did increase. But we went too far, sweeping too many nonviolent, low-risk offenders into prison for long terms.

As it became clear that the incarceration rate was unnecessary and unsustainable, some of those same conservatives as well as a new generation of fiscal and social conservatives began to look for ways to keep this increased safety without needlessly and expensively locking up people who posed no threat to it. These leaders have helped pioneer today’s national emerging call to reduce overincarceration.

Few would have expected some of the most significant moves to right-size and modernize America’s bloated criminal justice system would have begun in Texas, a state not known for going easy on those who break the law. But that is exactly what happened.

In 2005, the Texas Public Policy Foundation launched a program to reform the state’s criminal justice system. Along with other advocates, state legislators, and our governor, we worked to achieve a historic shift in criminal justice policy away from building more prisons and toward strengthening alternatives for holding nonviolent offenders accountable in the community. Since making this shift in 2007, Texas has dropped its incarceration rate by 12 percent. And our safety has actually increased. Our crime rate dropped by 25 percent, reaching its lowest level since 1968. Meanwhile, taxpayers saved $2 billion that would have gone toward new prisons.

Building on our success in Texas, we launched Right on Crime in 2010. Our Statement of Principles, signed by conservative leaders and leading criminal justice experts — including Jeb Bush, Newt Gingrich, Ed Meese, Rick Perry, Ken Cuccinelli, Bill Bennett, Grover Norquist, J.C. Watts, John DiLulio, and George Kelling — explains how conservative principles such as personal responsibility, limited government, and accountability should apply to criminal justice policy. Right on Crime seeks to: maximize the public safety return on the dollars spent on criminal justice; give victims a greater role in the system through restorative justice approaches and improving the collection of restitution; and combat overcriminalization by limiting the growth of non-traditional criminal laws.

Since then, Right on Crime has worked with conservative governors and legislators across the country to advance tough and smart criminal justice reforms. In most places, such as Georgia, Ohio, Pennsylvania, and South Carolina, these reforms have passed unanimously or with just a few votes against them. Conservatives were among the most vocal champions of these changes. The reforms in these states have been similar: strengthening and expanding problem-solving courts; reducing penalties for low-level drug possession; reinvesting prison savings into proven community corrections and law enforcement strategies; imposing sanctions for violations of parole and probation terms; increasing ability to earn time toward release from prison; and instituting rigorous, results-oriented performance measures to hold the system accountable for lowering recidivism.

These reforms have achieved wide success. In 2010, South Carolina passed legislation that created graduated sanctions for technical violations of parole and probation, reduced penalties for low-level drug possession, increased supervision for inmates upon release from prison, increased earned credits for probationers, used risk assessment to guide supervision levels, and reallocated 35 percent of prison savings to supervision. Since then, the state has closed two prisons and experienced a 9 percent drop in its crime rate. Moreover, the reductions in supervision revocations in the first two years alone saved the state $7 million.

While state incarceration rates have been declining slightly in the last few years, largely due to these reforms, the federal prison system continues to swell. Since 1980, the number of federal prisoners has ballooned by over 700 percent. Most of this increase has been driven by the influx of low-level drug offenders who in previous decades would have been tried and convicted in state courts. Of the 22,300 federal drug offenders sentenced in 2013, half had little or no prior criminal record and 84 percent had no weapon involved in the crime — and most of the 16 percent who did merely possessed the weapon. Despite these facts, 95 percent of all federal drug offenders went to prison in 2013, and 60 percent received mandatory minimum sentences of 5, 10, or 20 years, or even life without parole.

Federal judges have often lamented that they are forced to give sentences that are unjust and far beyond what is needed to sufficiently punish the offender and ensure public safety. One such case: a 40 year-old man named Robert Riley who was convicted in federal court in 1993 of selling a miniscule amount of LSD. Due to automatic statutory sentence enhancements based on his prior drug convictions, which also involved small amounts, Riley was sentenced to life without parole. The judge, who was nominated by President George H. W. Bush, said the sentence he was forced into was “unfair” and wrote a letter supporting presidential clemency, which has proven futile thus far.

In addition to drug cases, there are also many problematic federal cases involving guns legally owned by ex-convicts. Some such defendants have received mandatory terms of 10 to 40 years even when the prior offense was nonviolent and decades ago their guns would have been legally owned. In one case, a man used a 60-year-old hunting rifle to hunt turkey in rural Tennessee and the judge was forced to impose a 15- year mandatory term, which the judge himself found was “too harsh.”

These judges are correct. These sentences are unfair and too harsh. They are also unnecessary. The federal government and states across the country should take a page from the recent success of states like Texas, Georgia, and South Carolina. They have proven that it is possible to rein in mandatory minimums for nonviolent offenses without decreasing public safety. Specifically, federal policymakers should reduce mandatory minimums for nonviolent crimes and offer nondisclosure to ex-offenders. Congress should also reduce the number of federal criminal laws, ensure clear mens rea requirements, codify the rule of lenity, and pull back and allow states to enforce our criminal laws.

Texas and Indiana are among the states that offer “nondisclosure,” whereby after a period of time ex-offenders who have proven to be law- abiding citizens can apply to have their record made non-public. Some 70 million Americans now have the scarlet letter of a conviction, which makes it far more difficult to secure employment and housing — hurting them, their families, and the economy overall, and making it more likely that they will reoffend. To further prevent people from becoming trapped in the revolving prison door, we have worked in states such as Texas and Louisiana to enact legislation that ensures ex-offenders can obtain provisional occupational licenses and immunizes employers from being sued simply for giving an ex-offender a second chance.

Finally, it is time to pare back the astronomical growth in the breadth of federal criminal law, which is in tension with the primary constitutional role of state and local governments in the area of criminal justice. There are now more than 4,500 federal statutory offenses on the books, and hundreds of thousands of regulations carrying criminal penalties. We recommend that all necessary federal criminal laws be consolidated into one federal criminal code with clear mens rea requirements, which will make it simple for the average citizen to determine what is prohibited, and that agency regulations be precluded from carrying criminal penalties unless expressly authorized by Congress. Congress should also codify the “rule of lenity,” meaning that courts should read ambiguous criminal laws in favor of defendants.

When it comes to conduct that is truly properly criminalized, the limited federal criminal justice resources available should be refocused on areas where the federal government is uniquely situated to supplement the role of states and localities, such as matters involving homeland security and international drug and human trafficking. The garden variety drug, property, or even violent offense that occurs on one street corner can and should be addressed by prosecution at the local and state levels. Congress and the administration should look at how to develop mechanisms, such as guidelines and performance measures, to ensure federal prosecutorial resources are being appropriately prioritized. We must be careful that in our attempts to protect the safety of all people, we do not infringe on the liberty of others. The recent successes of many states in reducing crime, imprisonment, and costs through reforms grounded in research and conservative principles provide a blueprint for reform — at the federal level and for states across the country.